This case establishes that a defendant arrested and charged with possession of marijuana may assert the statutory affirmative defense set forth in Michigan's Medical Marijuana Act [in section 8 of the Act], and in so doing, is not required to meet all the [additional] requirements set forth for the broader immunity portion of the act [set forth in section 4].
This essentially translates into the availability of an affirmative defense for a defendant that has seen his treating physician, and where that physician has provided a statement that the defendant is likely to receive a therapeutic or palliative benefit from the use of marijuana.
This Supreme Court decision combines two cases: Alexander Kolanek which is an Oakland County case; and Larry King, a defendant from Owosso, in Shiawassee County.
In Kolanek, the High Court affirmed the Court of Appeals' ruling that a marijuana defendant, in order to assert the section 8 affirmative defense, must obtain his physician's statement prior to his arrest for marijuana possession; not 6-days after as occurred in Kolanek. The significance for defense counsel is that a defendant does not have to have a patient registration card issued by the State of Michigan in order to assert the defense; but the defendant must have at least obtained a physician's statement prior to an arrest for marijuana possession.
This decision is unanimous; 7-0, with no concurrences or dissents. Thus, the ruling is clear: even unregistered defendants charged with marijuana possession are entitled to assert the affirmative defense set forth in section 8; and the Medical Marijuana Act establishes two distinct sections [the broad immunity established in section 4, and the affirmative defense of section 8] which provide for two separate and distinct protections from marijuana prosecution.
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